Good news for religious freedom, out of Michigan and courtesy of the Supreme Court’s ruling in Masterpiece Cake Shop.
For those who don’t recall, the Supreme Court ruled for Phillips [proprietor of Masterpiece Cakes] in large part because a commissioner of the Colorado Civil Rights Commission called Phillips’s claim that he enjoyed a religious-freedom right not to be forced to design a custom cake for a gay wedding a “despicable piece of rhetoric.” The commissioner also denigrated religious-liberty arguments as being used to justify slavery and the Holocaust.
… [T]he question was whether Justice Anthony Kennedy’s strong condemnation of anti-religious bigotry would resonate beyond the specific facts of the case.
The answer is “yes, it would resonate more widely,” and I’m starting to see how this may play out:
In 2015 the state of Michigan passed a statute specifically designed to protect the religious liberty of private, religious adoption agencies. In 2018, however, Dana Nessel, a Democratic attorney general, took office. During her campaign, she declared that she would not defend the 2015 law in court, stating that its “only purpose” was “discriminatory animus.” She also described proponents of the law as “hate-mongers,” and the court noted that she believed proponents of the law “disliked gay people more than they cared about the constitution.”
Then, in 2019, the attorney general reached a legal settlement in pending litigation with the ACLU that essentially gutted the Michigan law, implementing a definitive requirement that religious agencies provide recommendations and endorsement to same-sex couples and banning referrals. The plaintiffs sued, seeking to enjoin the relevant terms of the settlement, and yesterday Judge Robert Jonker (a Bush appointee) granted their motion for a preliminary injunction.
His reasoning was simple. There was ample evidence from the record that the state of Michigan reversed its policy protecting religious freedom because it was motivated by hostility to the plaintiffs’ faith. Because Michigan’s targeted St. Vincent’s faith, its 2019 settlement agreement couldn’t be truly considered a “neutral” law of “general applicability” that would grant the state a high degree of deference in enforcement.
Kudos to Becket (which I’ve been calling “Becket Fund for Religious Liberty,” perhaps erroneously or anachronistically), which handled this important case. I like to think a few of my dollars went into it.
This is a gratifying outcome that avoids the deeper constitutional issue of silently excluding an entity from a program because of its religious beliefs.
Attorney General Nessel herself is now unmasked as a bigot who misunderstands or contemns the law — or to paraphrase her, “dislikes conservative religious people more than she cares about the constitution.” May she be suitably chastened — repentant even.
But I’m taking no wagers on that.
What’s notable is that Nessel felt free to utter those sentiments in public, and as part of a campaign promise. She apparently thought shaming observant Catholics (the Reformed Protestants of Bethany Christian Services, too) was an electoral plus for her, and it obviously didn’t wound her fatally.
Maybe her GOP opponent was terribly odious, but I fear it’s more a matter of not living in our parents’ civilly-religious America any longer.
Now, though, Nessel and her fellow bigots need to stifle the legally counter-productive expression of their bigotry.
So how do they get the electoral lift without the legal let-down? Welcome to the era of anti-religious campaign dog-whistles.
On that, I will take (modest) wagers. Instead of Willie Horton ads, maybe Jerry Falwell, Jr. or Pat Robertson ads?
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I sought to understand, but it was too hard for me, until I went into the sanctuary of God; then understood I their end.
(Psalm 72:15-17, Adapted from the Miles Coverdale Translation, from A Psalter for Prayer)
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